Over the past week, two federal judges have found that the government’s use of software in a mass hacking of child-porn websites to identify users is constitutional.

The findings by judges in Tacoma, Washington, and Milwaukee are the first in an uncharted and technically complex area of law.

The two cases involved a child-porn website, Playpen, that was reachable only through the installation of special software called Tor, the world’s most widely used tool to give users anonymity online.

Because users who gravitate to Playpen could hide their tracks using Tor, the FBI in both cases obtained search warrants to hack the website and surreptitiously place computer code, or malware, on computers logging into certain forums on the site. When a user logs in and clicks on the forum, the malware exploits a flaw in his browser, forcing his computer to reveal its true Internet protocol address.

The defendant in the Tacoma case, Keith Michaud, argued that by hacking a website and infecting possibly thousands of computers in unknown locations, the government’s action violated the Fourth Amendment’s requirement that a warrant “particularly” describe the place to be searched.

Michaud, who has been charged with receipt and possession of child pornography, also argued it amounted to a general warrant, a reference to the British practice during the Colonial era of allowing government searches without individualized suspicion.

But U.S. District Judge Robert J. Bryan, in the Western District of Washington, denied Michaud’s motion to throw out his charges on constitutional grounds.

In a separate but related case in Milwaukee, a judge similarly found that the FBI had probable cause to issue a warrant to deploy the malware and rejected the defendant’s motion to dismiss the charges.


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